Legally reviewed by Edward A. Sundquist - Raimondo & Sundquist LLP

When a loved one can no longer make certain important decisions on his or her own, whether because of age, incapacity, disability, or another circumstance, family members may understandably wonder what they can do to protect that person and ensure his or her needs are properly met. In other cases, a child may need another responsible adult to step in and make decisions on his or her behalf or manage property that belongs to the child. Fortunately, New York law provides a legal process known as guardianship that may help in these situations. Simply put, a guardianship is a legal arrangement wherein a court appoints an individual or organization to make certain decisions for another person who is unable to make those decisions independently. Continue reading and reach out to a Buffalo estate lawyer at Raimondo & Sundquist LLP to learn more about how guardianships in New York work and how our legal team can assist you and your family.

What Are the Different Types of Guardianships in New York?

There are several types of guardianships recognized under New York law, and each one is designed to address a somewhat different set of circumstances. Some of the most common types of guardianships are as follows:

  • Article 81 guardianship: An Article 81 guardianship is generally used when an adult is unable to manage some or all of his or her personal or financial affairs and is likely to suffer harm as a result. Importantly, these guardianships are meant to be tailored to the individual’s actual needs, meaning the court may give the guardian authority over only certain areas of the person’s life rather than granting complete control.
  • Article 17-A guardianship: Article 17-A guardianships generally apply to adults with intellectual or developmental disabilities who require assistance making certain decisions. These cases are typically handled through Surrogate’s Court, and a guardian may be granted broad authority to make decisions concerning the person’s personal needs, property, or both.
  • Guardianship of a child: A guardian may also be appointed for a minor when the child’s parents cannot provide appropriate care or when the child receives an inheritance, settlement, property, or other significant assets that need to be managed until he or she reaches adulthood. Depending on the circumstances, these guardianship matters may be handled in Family Court or Surrogate’s Court.

What Can a Guardian Do on Behalf of Another Person?

The authority given to a guardian will depend heavily on the type of guardianship involved and the specific powers granted by the court. For example, in an Article 81 guardianship, the court may authorize the guardian to make decisions regarding the incapacitated person’s personal needs, financial affairs, or both. Depending on the circumstances, a guardian may be permitted to do any of the following:

  • Make certain healthcare decisions
  • Determine appropriate living arrangements
  • Apply for government or private benefits
  • Obtain important medical or financial records
  • Pay bills and manage everyday expenses
  • Manage and protect property or other assets
  • Enter into certain contracts on the person’s behalf

It is important to understand, however, that an Article 81 guardian is not automatically given unlimited authority over another person’s life. Instead, New York courts generally attempt to grant only those powers that are actually necessary while allowing the incapacitated person to retain as much independence and decision-making ability as possible.

Guardians also have important responsibilities once they are appointed. For example, depending on the type of guardianship, a guardian may be required to complete training, properly manage the person’s property, keep detailed records, and submit initial, annual, or final reports to the court. Because of this, becoming someone’s guardian is a significant legal responsibility and should not be taken lightly.

How Do I Establish a Guardianship in New York?

Generally speaking, a guardianship cannot simply be created through an informal agreement between family members. Instead, a court must become involved, and the exact process you will have to follow depends on the type of guardianship you are seeking.

For example, when someone seeks an Article 81 guardianship, the petitioner must file the appropriate documents with the court and explain why the individual requires assistance, as well as which powers the proposed guardian should receive. The person who is alleged to be incapacitated must also receive proper notice of the proceeding, and the court will ultimately hold a hearing to determine whether a guardian is actually necessary. During this process, the court may consider several issues, including the following:

  • The person’s ability to manage personal and financial affairs
  • The types of decisions with which the person requires assistance
  • Whether the person is likely to suffer harm without help
  • Which specific powers should be granted to the guardian
  • Whether less restrictive alternatives to guardianship are available

Rather importantly, guardianship can significantly affect a person’s right to make his or her own decisions, which is why New York courts take these cases seriously and may consider whether another arrangement can adequately protect the individual before appointing a guardian.

Ultimately, if you believe that your parent, child, relative, or another loved one may require assistance managing important personal or financial matters, you should strongly consider contracting a knowledgeable New York estate lawyer who can assess your circumstances, explain the guardianship options available, and help you determine the best path forward for protecting your loved one’s well-being and interests. Reach out to Raimondo & Sundquist LLP today.